RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02223
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050706

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E6, Administrative Specialist, medically separated for “low back pain” and “chronic bilateral knee pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.   

CI CONTENTION:  The CI listed mechanical low back strain, left hip tendonitis associated with mechanical low back strain and right and left knee musculoligamentous strains.  The left hip is an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned to those conditions determined by the PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB to be not unfitting or non-compensable.  Any conditions outside the panel’s defined scope of review, and any contention not requested in this application, may remain eligible for future consideration by the Board for Correction of Military Records.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions; that role and authority is granted by Congress to the Department of Veterans Affairs, which operates under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB – 20050623	VARD - 20051129	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain  	5242	10%	Mechanical Low Back Strain	5237	10%	20051021	
Chronic Bilateral Knee Pain	5099-5003	0%	Right Knee Musculoligamentous Strain	5260	0%	20051021	
			Left Knee Musculoligamentous Strain	5260	0%	20051021	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in September 2004 after falling during physical training.  Radiographs of the sacrum and coccyx on 23 September 2004 were normal.  Lumbar spine X-rays the same day showed a transitional L5 vertebra on the right (normal variant) and were otherwise unremarkable.  On 14 November 2004, the CI fell again from approximately 2 feet aggravating her back.  A 2 December 2004 physical medicine examination showed a normal gait and full spine range of motion (ROM) with no significant discomfort.  There was tenderness of the left paraspinals.  Physical therapy for general aerobic and strengthening was recommended.  An MRI on 29 March 2005 revealed no evidence of disc herniations or spinal canal or foraminal stenosis.  Lumbar spine X-rays on 13 April 2005 showed mild multi-level degenerative disc disease and mild spinal arthritis.   

During the 5 May 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the examiner noted mild tenderness and full ROM.  The 24 May 2005 MEB NARSUM examination, one month prior to separation, noted complaint of back pain.  Physical examination showed full ROM with mild tenderness in the lumbar area.  

At the 21 October 2005 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported daily back pain and treated the pain with an occasional anti-inflammatory medication.  The CI denied incapacitating episodes.  Physical examination showed a normal gait.  Back flexion was 90 degrees and combined ROM was 240 degrees.  There was painful motion on repetition, without loss of motion.  There was no weakness, fatigue or in-coordination with repetitive use.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), citing full ROM and minimal tenderness.  The VA also rated the back condition 10%, coded 5237 (lumbar spine strain), based on the C&P examination, citing flexion of 90 degrees and combined ROM of 240 degrees with pain on flexion.  Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of tenderness.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.   The panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB. The evidence for the knee condition is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the STR and MEB NARSUM, the CI’s bilateral knee conditions began in September 2004 after falling during physical training.  At the orthopedic MEB consult visit on 13 April 2005, 3 months prior to separation, the CI reported bilateral knee pain for 5 years with pain in the anterior knees, worse with stairs or hills.  Bilateral knee X-rays were normal.  There was minimal to no joint line tenderness and no effusions.  Patellar tracking was normal and the knees were stable.  No ROM measurements were provided.  The orthopedic examiner indicated the CI fell below retention standards due to her knees.  

During the MEB examination (recorded on DD Forms 2807-1 and 2808), the examiner noted bilateral knee tenderness.  The commander’s statement dated 20 May 2005 implicated the CI’s knees as impairing successful duty performance. The MEB NARSUM examination noted complaints of bilateral dull pain behind the kneecaps, aggravated by stair climbing, running and jumping.  Physical examination of the bilateral knees showed full ROM (0-140 degrees) with no joint line tenderness or effusion and normal patellar tracking.  There was no evidence of instability or meniscal pathology of either knee.  The MEB NARSUM examiner determined the CI fell below retention standards due to her knees.  The permanent profile listed bilateral knee pain.  

At the C&P examination, the CI reported bilateral knee pain without specific injury.  Physical examination showed a normal gait.  Bilateral knee ROM was normal, without crepitus.  The examiner noted there was no painful motion, evidence of instability, weakness, fatigue or incoordination.   

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right and left knees and assigned a single 0% rating, coded 5099-5003, with application of the USAPDA pain policy.  The VA rated each knee 0%, both coded 5260 (leg, limitation of flexion), based on the C&P examination, citing flexion from 0 to 140 degrees without pain in either knee.  The panel first considered if the bilateral knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case, both knees were profiled, implicated by the commander’s statement and judged to fail retention standards.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other. Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with the CI’s military occupational specialty performance, members agreed that each knee was reasonably justified as separately unfitting.

The panel then considered its rating recommendation for the unfitting knees at the time of separation.  Panel members considered the objective findings and associated disability for each knee were identical, and agreed the respective ratings should therefore be the same.  There was no evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45).  There likewise was no limitation of motion which attained a 10% rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under those codes.  There was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  No additional functional limitation was evidenced by the examinations.  Therefore the panel concluded there was insufficient evidence to support a rating higher than 0% for either knee.  After having unbundled the knees the panel recommends the same combined rating as the PEB which provides no ratings benefit.  The panel also noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and therefore no change to the PEB’s combined adjudication is recommended.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee condition.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.   There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170306, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

	

	

AR20190004260, XXXXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,					      
Enclosure